Court Rules That Public Employer May Search Text Messages Sent and Received at Workplace

A recent court case makes clear that the right to privacy of public employees’ electronic communications at the workplace is severely limited, such that their employer most likely could read that communication without violating the U.S. Constitution.    

On June 17, 2010, the United States Supreme Court unanimously found that a public employer does not engage in an unreasonable search in violation of the U.S. Constitution when it conducts a review of the text messages sent and received by a pager issued to a City police officer.  In City of Ontario v. Quon, the Court found that a search of a police officer’s text messages was reasonable as it was motivated by a legitimate work-related purpose and was not excessive in scope.

In Quon, the City of Ontario in the State of California obtained in October, 2001 several pagers capable of sending and receiving text messages. The City then entered a contract with a telecommunications company to provide service for the pagers.  Under the service plan, each pager had a limit in the number of characters that could be sent or received each month.  Use beyond that limit resulted in additional fees.  The City distributed these pagers to SWAT team members of its Police Department, including one Officer Jeff Quon.

Prior to acquisition of the pagers, the City issued a policy concerning the use of computers, internet, and e-mails.  That policy made clear that the City reserved the right to monitor all Internet and e-mail activity, with or without notice.  It further made clear that users should have no expectation of privacy with respect to their use of such electronic devices.  The policy did not specifically mention pagers or text messages sent from wireless sources outside the City’s computer server.  However, the City informed its employees, including its police officers that the policy applied to all text messages as well as e-mails.

Shortly after distribution of the pagers, the City discovered that Quon had exceeded the overage use on his pager.  The City informed him of this fact, and that it had the authority to audit Quon’s use of his pagers and e-mail.  While the City disclaimed an interest in conducting such an audit, it recommended that he pay the overage fees, which Quon did.  However, Quon continued to exceed the character limit on his pager, resulting in more overage fees.  Each time he paid the overage fee.

The City ultimately decided to investigate Quon’s use of his pager to determine whether the character limit was too low for business needs.  Specifically, the City wanted to know whether the overages were due to work-related activity or personal use.  The City reviewed Quon’s text messages over a two-month period.  The result of its investigation demonstrated that the overwhelming number of text messages sent by Quon were for personal, rather than business, use.  Some of those personal text messages were sexually explicit.  The City concluded that he had violated Department policy, and disciplined him.

Quon filed suit in federal district court in California raising multiple claims, including a claim under the Fourth Amendment of the U.S. Constitution.  The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .”   Effectively, Quon argued that the City engaged in an unreasonable search when it conducted an audit of his text messages. 

With respect to his Fourth Amendment claim, the district court, in a jury trial, determined that the audit of Quon’s text messages did not violate his Fourth Amendment rights as it had been conducted simply to determine the feasibility of the character limit.  Quon appealed that decision to the United States Court of Appeals.  The Court of Appeals reversed, finding that the scope of the search was too broad and there were less-intrusive means to conduct the search

The City appealed to the Supreme Court.  The Supreme Court expressly avoided making a determination on a number of issues raised on appeal: first, whether Quon had a reasonable expectation of privacy in the text messages sent and received on a pager issued by the City; second, whether the audit of the text messages constituted a search under the Fourth Amendment; and, third, whether the rules that apply to a search of a government employee’s office are applicable to a search of a government-issued electronic device.  The Court assumed without so finding that all of these were true so it could reach the narrower conclusion that the search was reasonable under a recognized exception to the Fourth Amendment.

The Court stated: “Although, as a general matter, warrantless searches ‘are per se unreasonable under the Fourth Amendment,’ there are ‘a few specifically established and well-delineated exceptions’ to that general rule.”  One of those exceptions, the Court noted, are the “special needs” of the workplace.  Elaborating, the Court found that a search “conducted for a ‘non-investigatory, work-related purpos[e]’ or for the ‘investigatio[n] of work-related misconduct’” does not violate the Fourth Amendment.

In this case, the Court found that the audit of Quon’s text messages met this exception. “The search was justified at its inception because there were ‘reasonable grounds for suspecting that the search [was] necessary for a non-investigatory work-related purpose.’”   Specifically, the audit was conducted to determine whether the character limit on the City’s wireless service was sufficient to meet its business needs.  The Court also found the scope of the search was justified as it was “an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.”  Finally, the Court found that the extent of any reasonable expectation of privacy that Quon had in his text messages was severely limited as the City notified him that his text messages were subject to review.  For these reasons, the Court reversed the Court of Appeals, holding that the search was reasonable.

The Court’s ruling makes clear that public employees cannot expect that their electronic communications at the workplace on devices provided by the employer are protected by a right to privacy.  While e-mail, text messages, and Internet use by public employees at the workplace still has limited protection under the Fourth Amendment, an exception to that rule allows the government employer to conduct searches of such communication at least when it is the employer which provided the means to engage in that communication.  Therefore, public employees who communicate at work through electronic means provided by their employers must be mindful that their boss, at some time, may review their communications.  The Quon decision demonstrates that the Fourth Amendment will not necessarily serve as a barrier against such searches.